Important Changes to Employment Legislation

In October 2004, the States approved changes to the Employment Protection (Guernsey) Law, 1998 (unfair dismissal) and agreed to implement the proposed Sex Discrimination Law by Ordinance. The States also agreed to introduce a new Employment and Discrimination Tribunal Ordinance, which will provide a Tribunal to hear complaints such as unfair dismissal and sex discrimination. This leaflet summarises what these changes will mean to you when the legislation comes into force, towards the end of 2005 or early in 2006.

Changes to the Employment Protection (Guernsey) Law, 1998 (Minimum Periods of Notice and Unfair Dismissal)

• The qualifying period of employment necessary for employees to make a complaint of unfair dismissal or to request a written reason for dismissal will be reduced to one year (currently two years);
• Complaints, such as unfair dismissal or failure to be provided with a written reason for dismissal, will need to be notified within three months of the effective date of termination (currently there is a one month period in which to submit a complaint);
• Awards for successful claims of unfair dismissal will be increased to 6 months’ pay, or 26 weeks’ pay if weekly paid; however, the Tribunal will be able to reduce the amount of the award in accordance with equity and the substantial merits of the case;
• Parties to a potential complaint will be able to make ‘compromise agreements’. Once a valid compromise agreement has been reached, a potential applicant is barred from bringing a formal complaint;
• Complaints under the Law will be dealt with by a Tribunal (currently complaints are heard by an Adjudicator sitting alone).

The Employment and Discrimination Tribunal (Guernsey) Ordinance, 2005

This piece of legislation will provide a Tribunal to hear the following complaints:

• Unfair dismissal/failure to be provided with a written reason/s for dismissal;
• A complaint that an employer’s written reasons for dismissal are inadequate or untrue;
• Suffering a detriment for a refusal or proposal to refuse to work on Sundays (shop workers only);
• Discrimination and victimisation claims under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005.

The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005.

This Ordinance will make it unlawful to discriminate in the employment field on the grounds of sex or marital status. Discrimination can occur in two forms:

Direct discrimination is less favourable treatment, based on sex (or that someone is married), which is a detriment e.g. ‘we do not employ women’; ‘married persons cannot apply for promotion’. Treating a woman less favourably because of her pregnancy would be direct sex discrimination.

Indirect discrimination is when a person treats all workers the same but a provision, criterion or practice adversely affects a considerably larger proportion of one sex than the other (or married persons more than single persons). For indirect discrimination to be proved, the provision, criterion or practice must be unjustified e.g. ‘Accounts clerk required...must be over 6 feet tall.’ (There is no justification for a height criteria for accounting work; this will adversely affect more women than men, as fewer women than men will be tall enough to apply for the job.) Another example of possible indirect sex discrimination might be treating part-timers less favourably (as most part-timers are women).

The Ordinance will also protect against victimisation i.e. it will protect individuals from suffering less favourable treatment from their existing or future employer because they have brought, for example, a sex discrimination complaint. Protection against discrimination will only cover the EMPLOYMENT FIELD (and will include employment/temping agencies, contract workers and partnerships). Areas of protection will include:

• The recruitment/advertising/selection of new staff;
• The terms of the offer of employment (including pay and benefits);
• Access to promotion, transfer, training and other benefits (including pay and pensions);
• Dismissal or any other detriment (e.g. sexual harassment).

There will be exceptions to the provisions of the Ordinance where e.g. employers may confine a job to persons of one sex when being a member of that sex can be considered a Genuine Occupational Qualification (GOQ). Physiology e.g. model work or Decency or Privacy e.g. working in a residential home as a carer or as a changing room attendant are good examples of GOQs.

There is no qualifying period necessary in order to make a complaint of discrimination and no age limit. Individual complainants can apply for their complaint to be heard by the Tribunal and, if upheld, the award will be three months’ pay (unless there has been a dismissal, in which case the award will be six months’ pay, reduced if appropriate in accordance with equity and the substantial merits of the case).

The Commerce and Employment Department may also act in cases of alleged discriminatory practices e.g. discriminatory job advertisements and can issue Non-Discrimination Notices. The penalty for failure to act in accordance with a Non-Discrimination Notice is a fine not exceeding £5,000.

It is expected that these changes will be implemented by late 2005 or early 2006. Training workshops and advisory booklets will be provided nearer the time. If you are interested in attending a future training workshop, or would like more information, please contact Mike Mahy, Sue George or Toni Airley at Commerce and Employment on 234567